Citation Nr: 0728732
Decision Date: 09/13/07 Archive Date: 09/25/07
DOCKET NO. 03-22 348 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss disability.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
K. Curameng, Associate Counsel
INTRODUCTION
The appellant in this case is a veteran who had active duty
service from March 1966 to November 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2002 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). The veteran's notice of disagreement was received in
May 2003. A statement of the case was issued in June 2003,
and a substantive appeal was received in July 2003.
Although the appeal also originally included the issues of
service connection for headaches, sinusitis and anxiety
attacks, these benefits were granted by rating decision in
July 2007 and are therefore no longer in appellate status.
FINDINGS OF FACT
1. Bilateral hearing loss was not manifested during the
veteran's active duty service or for many years thereafter,
nor is bilateral hearing loss otherwise related to such
service.
2. Tinnitus was not manifested during the veteran's active
duty service or for many years thereafter, nor is tinnitus
otherwise related to such service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2006).
2. Tinnitus was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §
3.303 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). This legislation
provides, among other things, for notice and assistance to
claimants under certain circumstances. VA has issued final
rules to amend adjudication regulations to implement the
provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159
and 3.326(a). The intended effect of the regulations is to
establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim.
After reviewing the claims folder, the Board finds that the
claimant has been adequately notified of the applicable laws
and regulations which set forth the necessary criteria for
the benefit currently sought. The September 2002 and March
2007 VCAA letters effectively notified the veteran of the
evidence needed to substantiate his claim as well as the
duties of VA and the appellant in furnishing evidence. The
Board also notes that the September 2002 and March 2007 VCAA
letters notified the appellant of the need to submit any
pertinent evidence in the appellant's possession. He was
advised to submit information describing the additional
evidence or the evidence itself. The Board believes that a
reasonable inference from such communication was that the
appellant must also furnish any pertinent evidence that the
appellant may have.
Further, the September 2002 letter was sent to the appellant
prior to the October 2002 rating decision. The VCAA notice
was therefore timely. See Pelegrini v. Principi, 18 Vet.
App. 112 (2004). Therefore, the requirements of 38 C.F.R.
§ 3.159(b)(1) have been met. The Board finds that all
notices required by VCAA and implementing regulations were
furnished to the appellant and that no useful purpose would
be served by delaying appellate review to send out additional
VCAA notice letters.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486. In the present appeal, the appellant was
provided with notice of what type of information and evidence
was needed to substantiate the claims for service connection
in the September 2002 and March 2007 VCAA letters. The March
2007 letter also provided notice of the types of evidence
necessary to establish a disability rating for his disability
claim and the effective date of the disability. A
supplemental statement of the case was subsequently issued in
May 2007.
The Board further notes that the appellant's status as a
veteran has never been contested. VA has always adjudicated
his claims based on his status as a veteran as defined by
38 C.F.R. § 3.1.
Furthermore, the Board finds that there has been substantial
compliance with the assistance provisions set forth in the
law and regulations. The record as it stands includes
sufficient competent evidence. All available pertinent
records, in service, private and VA, have been obtained.
Also, the veteran was afforded a VA audiological examination
in February 2007, and no further VA examination is necessary.
The Board finds that the record as it stands includes
adequate competent evidence to allow the Board to decide the
case and no further action is necessary. See generally 38
C.F.R. § 3.159(c)(4). No additional pertinent evidence has
been identified by the claimant as relevant to the issues on
appeal. Under these circumstances, no further action is
necessary to assist the claimant with his claims.
Legal Criteria
The issue before the Board involves claims of entitlement to
service connection for bilateral hearing loss and tinnitus.
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service.
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b).
Additionally, for veteran's who have served 90 days or more
of active service during a war period or after December 31,
1946, certain chronic disabilities, such as sensorineural
hearing loss (organic diseases of the nervous system), are
presumed to have been incurred in service if manifest to a
compensable degree within one year of discharge from
service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307,
3.309.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
For the purpose of applying the laws administered by VA,
impaired hearing will be considered a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz is 40 decibels or greater, or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The Board notes that the lack of any evidence that the
veteran exhibited hearing loss during service is not fatal to
his claim. The laws and regulations do not require in-
service complaints of or treatment for hearing loss in order
to establish service connection. See Ledford v. Derwinski, 3
Vet. App. 87, 89 (1992). Instead, as noted by the United
States Court of Appeals for Veterans Claims (Court):
[W]here the regulatory threshold requirements for
hearing disability are not met until several years
after separation from service, the record must
include evidence of exposure to disease or injury
in service that would adversely affect the auditory
system and post- service test results meeting the
criteria of 38 C.F.R. § 3.385....For example, if
the record shows (a) acoustic trauma due to
significant noise exposure in service and
audiometric test results reflecting an upward shift
in tested thresholds in service, though still not
meeting the requirements for "disability" under 38
C.F.R. § 3.385, and (b) post-service audiometric
testing produces findings meeting the requirements
of 38 C.F.R. § 3.385, rating authorities must
consider whether there is a medically sound basis
to attribute the post-service findings to the
injury in service, or whether they are more
properly attributable to intercurrent causes.
Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a
brief of the VA Secretary).
In addition, an examination for hearing impariment for VA
purposes must be conducted by a state-licensed audiologist
and must include a controlled speech discrimination test
(Maryland CNC) and a puretone audiometry test. 38 C.F.R.
§ 4.85(a).
Analysis
As an initial matter, the Board notes that there is competent
evidence of current bilateral hearing loss disability and
tinnitus. In this regard, current medical evidence of
record, specifically the veteran's February 2007 VA
audiological examination, revealed auditory thresholds of
greater than 40 decibels for several of the relevant
frequencies in each ear. The February 2007 VA examiner also
acknowledged the veteran's complaints of tinnitus. The RO
denied the veteran's claims, however, based on a finding that
the claimed disabilities are not shown to be related to the
veteran's active-duty service.
Service medical records show no complaints of, treatments
for, or diagnoses of anything pertaining to the veteran's
ears while in service. On the audiological evaluation in
September 1965 during the veteran's enlistment examination,
puretone thresholds, in decibels, were as follows when
converted from ASA units to ISO units:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
15
5
0
10
LEFT
25
5
10
0
10
In his September 1965 contemporaneous medical history, the
veteran did not indicate whether or not he experienced any
hearing loss.
On the authorized audiological evaluation in September 1969,
puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
5
0
5
10
LEFT
15
5
5
5
5
Accordingly, clinical evaluations of the ears were deemed
normal at time of the veteran's entrance and separation
examinations.
Post service medical records show that the veteran was seen
by S.P.C.,M.A.,
CCC-A for an audiological evaluation in February 2003. He
reported a history of constant bilateral tinnitus and
exposure to extreme excess noise with no hearing protection
while in service. He further reported working in an
excessively noisy workplace post service, but stated that he
always wore hearing protection. It was noted that
audiometric test results indicated normal hearing though 2000
Hertz, then sloping to a moderately severe to severe
sensorineural hearing loss bilaterally, more pronounced in
the left ear. It was also noted that the configuration of
the veteran's hearing loss was consistent with individuals
who have been exposed to excessive noise with no hearing
protection.
The veteran was afforded a VA examination in February 2007.
The veteran reported hazardous noise exposure in the military
that included firing range, naval guns, helicopters, and
aircraft engines. The veteran also reported that the
exposure was so long ago, that he could not recall whether he
used hearing protection. As a civilian, hazardous noise
exposure with the use of hearing protection included
factory/plant noise, construction work, carpentry tools, jack
hammers, power tools, chainsaws, power lawn mowers, weed
eaters, and grass blowers. The veteran reported that some
time after leaving the military, his tinnitus and bilateral
hearing loss started. Puretone thresholds, in decibels, were
as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
15
20
45
55
LEFT
25
25
15
50
70
The veteran was diagnosed with normal hearing in both ears
for frequencies between 500 Hertz and 2000 Hertz; moderate
sensorineural hearing loss at frequencies between 3000 Hertz
and 4000 Hertz for the right ear; and moderate to moderately-
severe sensorineural hearing loss at frequencies between 3000
Hertz and 4000 Hertz for the left ear.
Because the veteran's claims file was not available for
review at the time of the veteran's February 2007 VA
examination, the examiner refrained from rendering a medical
opinion. In the meantime, the veteran reported serving as a
jet engine mechanic aboard an aircraft carrier from 1966 to
1969. He stated that at the time of his discharge
examination, he was diagnosed with high-frequency hearing
loss. He further reported that as a civilian, he was a
maintenance carpenter in a refinery setting since 1970. The
examiner noted that both professions in service and post
service had the potential to cause high-frequency hearing
loss.
When the claims file was reviewed in April 2007, the veteran
confirmed that he did not remember if he had hearing
protection in service. The examiner noted that the veteran
entered service with a pre-existing hearing loss in the right
ear at 6000 Hertz. However, separation audiogram shows a 40
decibel improvement in threshold at 6000 Hertz. The examiner
explained that a change at that particular frequency is
nearly impossible, so he speculated that during the initial
exam, either the veteran had a collapsed ear canal from
circumaural headphone use, or it was a phenomenon of a
standing wave, or the results were plotted on the wrong ear.
He continued that separation audiogram showed a 55 decibel
loss at separation and the left ear continued to be worse
than the right. Based on the audiogram in service records,
the examiner opined that it was most likely that the ears
were switched on the initial audiogram. Since there were no
shifts greater than 15 decibels at any frequency tested, the
examiner concluded that there was no evidence of progression
of pre-existing hearing loss. When leaving service, the
veteran's hearing was normal at 500 Hertz to 4000 Hertz
bilaterally. In the examiner's opinion, it was likely that
his progression of hearing loss was secondary to civilian
occupational noise exposure. Thus, based on the information
provided by the veteran, review of his history, and extensive
review of his military records, the examiner opined that the
bilateral hearing loss and tinnitus were less likely related
to his military experience and more likely related to long-
term occupational noise exposure as a civilian.
The only competent evidence of record which provides a
possible link between the veteran's active duty service, and
tinnitus or hearing loss is included in a May 2003 letter
from W. P., D.O. Based on copies of the veteran's service
medical records which reportedly reflected the veteran's
current bilateral hearing loss and tinnitus, and a medical
history provided by the veteran, Dr. P. opined that it was as
likely as least likely that the ongoing complaints regarding
bilateral hearing impairment and bilateral tinnitus are
related to the military. He continued that based on medical
reports regarding the veteran's bilateral hearing loss with
tinnitus that was conducted by a certified audiologist, it
was possible that the veteran's bilateral hearing loss and
tinnitus were a result of constant exposure as a flight deck
refueler to loud aircraft engines on a major aircraft
carrier. Dr. P. also added that it was feasible that
exposure to extreme cold weather conditions while stationed
overseas in Keflavik, Iceland probably contributed to the
veteran's condition.
As noted previously, however, there was no competent evidence
of record documenting the presence of hearing loss and
tinnitus in service medical records. The Board additionally
notes, however, that Dr. P. did not account for the many
years of post-service noise exposure the veteran had. In
addition, the report does not indicate that he was a state-
licensed audiologist, but rather a doctor of osteopathy.
By contrast, the VA audiologist's April 2007 medical opinion
provided a rationale based upon the audiology testing and on
a review of the veteran's claims file. Therefore, the Board
affords considerably more weight to the April 2007 VA opinion
than to the statements contained in Dr. P.'s opinion. Among
the factors for assessing the probative value of a medical
opinion are the examiner's access to the claims file, and the
thoroughness and detail of the opinion. See Prejean v. West,
13 Vet. App. 444, 448-9 (2000). For the reasons set forth
above, the Board finds that the opinion rendered in the April
2007 VA examination report is clearly more probative.
The Board notes that there is no medical documentation of the
presence of hearing loss disability within one year of the
veteran's discharge which would allow for a grant of service
connection on a presumptive basis. Private medical records
show that the veteran was first treated for hearing loss in
February 2003, approximately 34 years after service.
The Board acknowledges the veteran's sincere belief that his
hearing loss disability and tinnitus are related to excessive
noise exposure during service. However, although lay persons
are competent to provide evidence regarding injury and
symptomatology, they are not competent to provide evidence
regarding diagnosis or etiology. See Espiritu v. Derwinski,
2 Vet. App. 492 (1992). Only a medical professional can
provide evidence of a diagnosis or etiology of a disease or
disorder. It is further noted that the veteran's case
presents an evidentiary picture which essentially shows that
hearing loss disability and tinnitus were not suspected or
reported during service and that the veteran's hearing loss
disability and tinnitus were only medically detected many
years after service. Overall, there is simply no medical
evidence to suggest a link between the current hearing loss
and tinnitus, and the veteran's service which ended in 1969.
After thorough review of the evidence currently of record,
the Board is led to the conclusion that there is not such a
state of equipoise of the positive evidence with the negative
evidence to permit a favorable determination in this case.
38 U.S.C.A. § 5107(b). The weight of the evidence is against
the veteran's claim.
ORDER
Entitlement to service connection for bilateral hearing loss
disability is denied.
Entitlement to service connection for tinnitus is denied.
____________________________________________
J. K. BARONE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs